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THE  RECALL  OF  JUDGES 
AND  JUDICIAL  DECISIONS 


SPEECH 

OF 

HON.  AUGUSTUS  P.  GARDNER 

OF  MASSACHUSETTS 


IN  THE 


HOUSE  OF  REPRESENTATIVES 


APRIL  4,  1912 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 


37725—10830 


1912 


SPEECH 

OF 

HOIST.  AUGUSTUS  P.  GARDNER, 

OF  MASSACHUSETTS. 


On  the  bill  (II.  R.  20728)  the  Indian  appropriation  bill. 

Mr.  JACKSON.  Mr.  Chairman,  I am  authorized  by  the 
gentleman  from  South  Dakota  [Mr.  Burke],  in  his  absence,  to 
yield  to  the  gentleman  from  Massachusetts  [Mr.  Gardner]  the 
balance  of  the  time  upon  this  side. 

The  CHAIRMAN.  The  gentleman  from  Massachusetts  is 
recognized. 

TIIB  RECALL*  OF  JUDGES  AND  OF  DECISIONS. 

Mr.  GARDNER  of  Massachusetts.  Mr.  Chairman,  one  of  the 
leaders  of  the  Republican  Progressive  League  has  said  that  a 
firm  belief  in  the  recall  of  judges  by  the  people  is  the  true  acid 
test  of  a progressive.  I dispute  an  analysis  determined  by  any 
such  chemistry.  I deny  the  application  of  the  epigram  and  in 
its  place  I offer  a truer  maxim.  A firm  belief  in  the  founda- 
tions of  our  Federal  Constitution  is  the  rock  from  which  the 
liberal  reformer  defies  the  radical  destroyer.  The  people  of 
this  country  are  the  motive  power  of  the  ship  of  state,  the  Con- 
gress chosen  by  the  people  is  its  rudder,  and  the  Constitution 
adopted  by  the  people  as  the  expression  of  its  profoundest  beliefs 
is  its  ballast. 

The  reactionaries  of  this  Nation  are  hopelessly  routed  and 
now,  as  always  in  the  world's  history,  a new  line  of  cleavage 
has  appeared  between  the  forces  which  have  put  the  old  order 
to  flight. 

On  one  side  of  this  new  line  of  cleavage  we  find  the  men  who 
wish  to  prune  and  pare  and  train  and  cultivate  the  tree  of  life. 
On  the  other  side  we  find  the  men  who  believe  that  the  tree 
is  so  old  and  so  rotten  that  it  must  be  pulled  up  by  the  roots 
and  a new  one  planted. 

SELF-LIMITED  DEMOCRACY  V.  PURE  DEMOCRACY. 

The  issue  is  squarely  joined  between  those  who  believe  in  a 
self-limited  democracy  and  those  who  believe  in  a pure  democ- 
racy. 

A self-limited  democracy  is  one  which  declares  that  it  will 
bind  itself  and  fortify  itself  against  its  own  hasty,  unjust,  or 
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oppressive  action  by  imposing  on  itself  a constitution.  It  is  a 
democracy  which  declares  that  its  constitution  shall  be  based 
on  eternal  truths  and  on  a full  recognition  of  the  rights  of 
every  man  to  his  life,  his  liberty,  and  his  property.  Such  a 
Constitution  we  now  possess  and,  hitherto,  since  this  Govern- 
ment was  formed,  save  during  the  period  of  our  Civil  War,  all 
the  people  have  submitted  to  its  restrictions.  But  now  comes 
forward  a body  of  men  who  call  themselves  Socialists  and  who 
deny  the  right  of  individuals  to  hold  property.  Joined  with  the 
Socialists  in  the  movement  for  fundamental  constitutional 
changes  are  those  radicals  who  believe  in  private  property,  but 
base  their  faith  on  a pure  democracy. 

Let  us  see  what  a pure  democracy  is.  Let  us  see  what  a 
purely  democratic  government  must  provide  as  its  machinery. 
A pure  democracy  is  a government  where  the  will  of  the  major- 
ity must  at  each  and  every  moment  be  the  supreme  law  of  the 
land.  A purely  democratic  government  must  obliterate  the  line 
which  separates  a constitutional  provision  from  a law  by  mak- 
ing it  possible  for  a majority  of  the  people  to  disregard  either  at 
any  time.  Such  a government  will  naturally  provide  an  Initia- 
tive by  which  any  reasonable  number  of  voters  may  propose  a 
law  or  a constitutional  provision  and  a Referendum  by  which 
a majority  of  the  voters  may  accept  or  reject  a law  or  a consti- 
tutional provision.  It  will  naturally  provide  an  Imperative 
Mandate  by  which  the  majority  of  the  voters  may  command  the 
President  or  any  executive  officer  to  do  its  will,  and  a Recall  of 
the  President  and  of  all  other  legislative  and  executive  officers 
who  shall  fail  to  obey  the  orders  of  the  majority  or  who  shall 
perform  their  duties  in  an  unsatisfactory  manner.  It  will  nat- 
urally provide  for  the  Review  or  Recall  of  Judicial  Decisions 
and  for  the  Review  of  Jury  Verdicts  when  the  voters  so  desire. 
It  will  naturally  provide  for  the  Recall  of  Judges  and,  perhaps, 
for  the  punishment  of  juries  who  disobey  the  majority  or  per- 
form their  duties  in  an  unsatisfactory  manner.  It  will  natur- 
ally provide  for  proportional  and  minority  representation  and 
for  a single  chamber,  instead  of  the  Senate  and  House.  It  ought 
to  abolish  the  veto  power  of  the  President,  and  it  must  give  the 
franchise  to  ail  adults  living  in  the  United  States — men  and 
women,  black  and  white,  citizens  and  aliens.  When  all  these 
changes  are  adopted  there  will  be  a pure  democracy  in  the 
United  States. 

THE  IMMEDIATE  PROGRAM. 

Of  course,  there  is  to-day  in  this  country  no  group  of  men 
calling  for  the  immediate  adoption  of  this  whole  program,  but 
large  numbers  of  our  citizens  are  demanding  that  its  cardinal 
points  shall  forthwith  be  made  the  law  of  the  land.  The  cam- 
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paign  for  the  Initiative,  Referendum,  and  Recall  is  in  full 
swing,  and  the  Review  of  Judicial  Decisions  has  but  recently 
been  added  to  the  immediate  program. 

The  Review  of  Judicial  Decisions  has  never  been  tried  in  this 
Nation. 

The  Initiative  is  new  and  is  now  undergoing  a trial  in  some 
of  the  States  of  the  Union. 

The  Referendum  has  always  existed  here  in  one  form  or  an- 
other, though  not  in  the  form  now  advocated. 

Elective  officers,  including  elective  judges,  have  always  been 
subject  to  the  Recall  in  the  sense  only  that  the  voters  might  al- 
ways decline  to  reelect  them. 

To-day  I shall  only  discuss  the  question  of  the  Recall  of 
Judges  by  the  people,  and  to  some  extent,  the  Review  of  Ju- 
dicial Decisions  by  the  people, 

TENURE  OF  JUDGES. 

Since  the  foundation  of  our  Government  life  judges  in- this 
country  have  never  been  subject  to  recall  by  the  people,  and, 
except  recently  in  a few  States,  elected  judges  have  been  sub- 
ject thereto  only  to  the  limited  degree  which  periodical  elec- 
tions afford.  Various  means,  however,  of  removing  judges  by 
the  legislature  have  been  in  force  in  the  different  States.  Some 
States,  like  Massachusetts,  provide  that  judges  may  be  removed 
on  address  by  the  legislative  and  executive  power  acting  jointly, 
and  the  removal  may  be  made  for  any  reason  or  for  no  reason 
at  all.  In  Massachusetts  the  joint  action  of  the  governor,  the 
council,  the  senate,  and  the  house  is  necessary  for  a removal  by 
address. 

All  States  provide  for  the  removal  by  impeachment  of  judges 
who  have  been  guilty  of  misconduct.  For  an  impeachment,  the 
concurrent  action  of  the  senate  and  the  house  is  required,  but  no 
action  by  the  governor  is  necessary. 

All  judges  of  the  United  States  hold  office  during  good  be- 
havior and  can  be  removed  only  by  impeachment.  Yet  such  is 
the  ingenuity  of  the  American  people  that  ways  and  means  have 
always  been  found  to  remove  life  judges  and  superfluous  judges 
when  absolutely  necessary  for  the  public  welfare,  even  if  those 
judges  have  committed  no  impeachable  offense.  This  end  has 
been  accomplished  by  reducing  the  number  of  judges  and  sub- 
sequently increasing  them  again.  It  has  been  accomplished 
by  abolishing  a court  and  simultaneously  creating  a new  one 
with  a different  name,  but  with  practically  the  same  functions. 
In  my  own  State  of  Massachusetts,  in  1859,  the  Court  of  Com- 
mon Pleas  was  abolished  and  the  Superior  Court  established  for 
the  express  purpose  of  making  a change  in  judges.  The  same 
device  has  again  been  employed  in  Massachusetts  much  more 
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recently.  A clumsy  and  difficult  mode  of  procedure,  I grant  you, 
but  effective  for  all  that. 

SOURCE  OF  THE  DEMAND  FOR  RECALL. 

It  is  only  a few  years  since  Mr.  Dooley  convulsed  the  country 
with  laughter  when  he  said  that  perhaps  trade  might  not  follow 
the  flag,  but  that  the  Supreme  Court  followed  the  election  re- 
turns. We  acknowledged  the  exaggeration,  but  we  admitted 
the  grain  of  truth,  because  we  knew  full  well  that  irremovable 
judges,  like  other  men,  only  to  a lesser  degree,  are  influenced  by 
changes  in  the  times  and  changes  in  public  sentiment.  What 
reversal  of  opinion  has  come  over  the  people  so  that  to-day  men 
listen  eagerly  when  they  are  told  that  our  Federal  judges  care 
nothing  for  public  opinion  and  always  decide  questions  in  a 
narrow  and  reactionary  spirit? 

We  are  living  in  an  age  of  discontent,  much  of  it  justifiable, 
much  of  it  the  artful  creation  of  the  demagogue.  WThen  men 
are  discontented  and  filled  with  anger  they  do  not  attack  with 
discrimination,  but  they  attack  blindly  in  all  directions.  For 
several  years  past  the  people  have  been  turning  out  of  power 
those  representatives  whose  views  do  not  meet  their  views  and 
have  been  substituting  men  who  share  the  same  opinions  as 
their  electors.  This  is  as  it  should  be.  This  is  the  true  remedy 
and  the  only  sure  remedy.  If  I can  not  bring  myself  to  believe 
that  which  my  constituents  believe,  it  is  my  sworn  duty  to  fol- 
low my  own  judgment  while  I am  still  in  Congress;  but  never- 
theless the  people  in  my  district  should  turn  me  out  of  Congress 
if  our  difference  in  views  is  important. 

Why  is  it  that  in  the  wave  of  change  which  has  swept  over 
England  the  British  judges  and  the  British  courts  have  not 
been  the  subject  of  attack?  Why  should  discontent  manifest 
itself  in  one  direction  at  home  and  in  another  direction  abroad? 

It  is  partly  because  the  British  court  procedure  has  been  re- 
formed and  ours  is  still  archaic.  But  why  blame  our  courts  for 
the  use  of  worn-out  tools?  It  is  our  legislatures  and  our  lawyers  Y 
who  have  been  remiss  in  supplying  them  with  no  new  ones,  and 
the  people  ought  not  to  tolerate  this  remissness  one  day  longer. 

Far  more  significant  than  any  question  of  difference  in  pro- 
cedure between  the  two  countries  is  the  fact  that  our  courts 
are  charged  with  two  great  unpopular  functions  which  the 
British  courts  escape. 

American  courts  must  declare  void  all  laws,  no  matter  how 
popular,  which  violate  any  of  -the  provisions  of  our  fundamental 
law,  the  Constitution. 

As  if  that  function  were  not  sufficient  cause  for  unpopularity, 
the  additional  duty  is  imposed  on  our  judges  of  issuing  injunc- 
tions in  labor  disputes,  and  they  are  further  charged  with  the 
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necessity  of  themselves  punishing  for  contempt  of  court,  with- 
out a jury  trial,  all  citizens  who  violate  those  injunctions. 

The  burden  of  unpopularity  arising  from  the  constitutional 
necessity  must  be  borne ; but  Congress  and  the  legislatures  -of 
the  States  can  and,  as  I believe,  ought  to  remove  the  burden 
of  unpopularity  arising  from  the  denial  of  a jury  trial  in  pro- 
ceedings for  contempt  to  enforce  injunctions. 

Such  are,  for  the  most  part,  the  motives  which  have  led  to 
a demand  for  the  Recall  of  Judges  by  vote  of  the  people. 

AN  “APPEAL  TO  SEASON.” 

Unfortunately,  there  is  also  a more  sinister  motive,  confined 
however,  I am  confident,  to  a small  minority  of  our  people. 

In  California  last  autumn  there  w’as  a campaign  for  the 
adoption  in  that  State  of  the  Recall  of  Judges  by  vote  of  the 
people. 

The  following  article  appeared  in  the  Appeal  to  Reason,  edited 
by  Eugene  V.  Debs : 

The  fight  at  the  polls  this  fall  will  center  around  the  adoption  of  the 
initiative,  referendum,  and  recall  amendments  to  the  constitution. 
Under  the  provisions  of  the  recall  amendment  the  judges  of  the  Supreme 
Court  of  California  can  he  retired.  These  are  the  men  who  will  decide 
the  fate  of  the  kidnaped  workers.  Don't  you  see  what  it  means,  com- 
rades, to  have  in  the  hands  of  an  intelligent,  militant  working  class 
the  political  power  to  recall  the  present  capitalist  judges  and  put  on 
the  bench  our  own  men?  Was  there  ever  such  an  opportunity  for 
effective  work?  No;  not  since  socialism  first  raised  its  crimson  banner 
on  the  shores  of  Morgan’s  country.  The  election  for  governor  and  State 
officers  of  California  does  not  oecur  till  1914.  But  with  the  recall  at 
our  command  we  can  put  our  own  men  in  office  without  waiting  for  a 
regular  election. 

Can  this  mean  anything  except  that  Debs’s  object  was  to  use 
the  recall  of  judges  for  the  purpose  of  securing  the  acquittal  of 
the  McNamara  brothers?  Few  Socialists  would  knowingly  lend 
their  approval  to  such  a motive. 

THE  CHARGES  AGAINST  THE  JUDGES. 

Whatever  the  causes  may  have  been  which  breathed  the 
breath  of  life  into  the  movement  for  the  Recall  of  Judges  by  the 
people,  here  are  the  principal  counts  in  the  indictment:  That 
the  courts,  when  they  interpret  the  law,  favor  property  rather 
than  mankind;  that  the  judges  must  necessarily  become  in- 
volved in  politics,  and  often  become  the  tools  of  their  political 
allies;  and  that  the  judges  are  biased  against  all  change  in  the 
existing  order  of  things.  Thank  heaven  a belief  that  judges  act 
fro-nr  corrupt  motives  has  found  no  root  in  the  American  breast. 
The  ermine  is  still  glorious  and  unsmirched  by  the  slime  of  the 
slanderer.  Yet  it  has  not  escaped  calumny.  No  mortal  man  can 
escape  that,  be  he  as  chaste  as  snow  and  as  pure  as  ice. 

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Prof,  Beard,  of  Columbia  College,  wbo  has  published  what  is 
probably  the  best  compilation  in  favor  of  the  Initiative,  Refer- 
endum, and  Recall,  tells  us  that  judges  must  necessarily  be 
clrawn  into  politics,  and  Senator  Jonathan  Bourne,  Jr.,  of  Ore- 
gon, tells  ns  that  from  one  ocean  to  the  other  experience  has 
taught  us  that  some  of  them  will  be  influenced  by  the  washes  of 
the  men  to  whom  they  ow^e  their  positions. 

I believe  that  both  Prof.  Beard  and  Senator  Bourne  have  in 
mind  such  judges  as  are  elected  or  appointed  for  a fixed  term 
of  years.  I am  afraid  that  it  is  true  that  some  weak  judges,  as 
the  time  for  their  reelection  or  reappointment  approaches,  may 
allow  their  eyes  to  wander  to  the  political  outlook  of  the  mo- 
ment instead  of  centering  their  regard  wholly  on  the  statute 
book.  I feel  that  in  such  cases  an  unpopular  litigant  or  a liti- 
gant with  an  unpopular  cause  might  get  something  less  than 
justice. 

For  that  reason  I have  no  hesitation  in  pronouncing  in  favor 
of  the  Massachusetts  judiciary  system.  Our  judges,  high  or 
low,  are  all  appointed  for  life  by  the  governor  of  the  State,  and 
they  never  enter  into  politics.  Why  should  they  enter  into 
politics?  They  have  nothing  to  lose  and  nothing  to  gain  by  it. 
Of  the  Massachusetts  system,  more  hereafter. 

SENATOR  OWEN’S  INDICTMENT  AND  THE  ANSWER. 

In  July,  3011,  Senator  Owen,  of  Oklahoma,  chairman  of  the 
national  committee  of  the  Initiative  and  Referendum  League  of 
America,  in  order  to  prove  his  contention  that  the  Supreme 
Court  disregards  the  welfare  of  the  people,  presented  a list  of 
the  specifications  in  his  indictment. 

He  instanced  certain  taxation  law’s  of  certain  States  which 
have  been  set  aside  by  the  Supreme  Court.  The  statute  of  Kan- 
sas imposing  a special  license  tax  on  the  Western  Union  Telegraph 
Co.  is  typical  of  this  class  of  statute.  It  appears  that  the  State 
of  Kansas  already  fully  taxed  the  Western  Union  Telegraph  Co. 
for  business  done  in  Kansas,  and  this  special  license  tax  wras 
an  indirect  endeavor  to  tax  that  company  on  business  done  in 
other  States.  Kansas,  like  many  of  the  States  of  the  Union, 
has  been  spending  vast  amounts  of  money,  and  it  w^as  not  un- 
natural that  its  legislators  should  be  willing  to  risk  the  consti- 
tutional question  in  an  endeavor  to  compel  outside  business  to 
assist  in  paying  the  bills  of  their  own  State.  The  Constitution 
does  not  permit  the  execution  of-  such  devices. 

Senator  Owen  also  tells  us  that  the  fourteenth  amendment  of 
the  Constitution  wras  adopted  to  guard  the  negro,  but  that  it 
has  been  used  to  protect  trusts  and  monopolies  in  imposing  long 
hours  of  labor.  The  fourteenth  amendment  certainly  was 
adopted  primarily  to  guard  the  negro,  but  that  part  of  the 
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amendment  to  which  Senator  Owen  refers  was  copied  from  the 
fifth  amendment  to  the  Constitution,  adopted  in  1701.  The 
fourteenth  amendment  certainly  never  intended  to  give  negroes 
greater  rights  than  those  accorded  to  white  people. 

The  employers’  liability  act  for  the  protection  of  employees 
was,  as  Senator  Owen  alleged,  declared  unconstitutional  by  five 
judges  against  four.  The  decision,  however,  related  to  the  in- 
terference with  State  authority  by  the  peculiar  terms  of  the 
act  rather  than  to  its  essence.  The  act  has  since  been  re- 
drafted and  passed  by  Congress  and  the  court  has  held  it  to  be 
constitutional  in  its  new  form. 

It  is  not  true,,  as  alleged  by  Senator  Owen,  that  the  arbitra- 
tion act  “ passed  as  the  result  of  the  great  strike  in  Chicago  in 
1894,  was  destroyed  by  the  courts.”  A reference  to  the  decision 
which  he  quotes  shows  that  the  arbitration  act  to  which  he 
refers  was  passed  June  10,  1898,  and  that  only  one  paragraph 
therein  was  declared  unconstitutional.  As  a matter  of  fact  this 
act,  known  as  the  Erdman  Act,  promises  excellent  results  in  the 
future. 

It  is  not  true  that  the  interstate-commerce  acts  have  been 
emasculated  by  the  Supreme  Court,  and  I can  not  understand 
how  Senator  Owen  or  anyone  else  can  think  so.  The  original 
interstate-commerce  act  and  its  amendments  have  brought  the 
railroads  under  strict  Government  control. 

It  is  true,  as  Senator  Owen  says,  that  in  1895  the  income-tax 
law  of  1894  wras  declared  unconstitutional  by  the  United  States 
Supreme  Court,  and  the  various  States  of  the  Union  are  now 
engaged  in  ratifying  a proposed  change  in  the  Constitution  de- 
signed to  meet  that  decision. 

No  one  denied  the  power  of  Congress  to  impose  an  income 
tax,  provided  that  the  amount  of  money  to  be  drawn  from  each 
State  in  the  Union  should  be  in  proportion  to  that  State's  impu- 
tation. No  one  denied  the  power  of  each  State  in  the  Union  to 
impose  within  its  own  borders  such  an  income  tax  as  it  might 
think  fit. 

But  the  income  tax  of  1894  was  not  apportioned  among  the 
States  of  the  Union  according  to  the  population  of  each  State. 
On  the  contrary,  the  amount  to  be  raised  in  each  State  would 
be,  roughly,  in  proportion  to  the  total  income  of  the  citizens  of 
that  State. 

The  clauses  in  the  Constitution  on  which  the  opponents  of  the 
tax  relied  read  as  follows : “ Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  States  which  may  be 
included  within  this  Union  according  to  their  numbers,"  and 
“ No  capitation  or  other  direct  tax  shall  be  laid  unless  in  pro - 
37725—10830 


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portion  to  the  census  or  enumeration  hereinbefore  directed  to 
be  taken”  It  was  not  for  the  Supreme  Court  to  consider  the 
merits  of  the  law.  The  whole  question  at  issue  was  as  to 
whether  an  income  tax  is  or  is  not  a direct  tax. 

The  Supreme  Court  decided  that  an  income  tax  is  a direct 
tax,  and  therefore  declared  the  law  of  1894  to  be  unconstitu- 
tional because  it  did  not  apportion  the  tax  to  the  States  accord- 
ing to  their  respective  populations.  I am  not  a lawyer,  but  it 
has  always  seemed  to  me  that  if  an  income  tax  is  not  a direct 
tax  then  nothing  except  a poll  tax  is  a direct  tax. 

Justice  Harlan  dissented  from  the  Supreme  Court  in  the  in- 
come-tax decision.  For  this  act  and  for  others  Senator  Owen 
declares  that  Justice  Harlan  is  a patriot  and  deserves  the  thanks 
of  the  country.  I always  admired  the  late  Justice  Harlan  and 
I revere  his  memory,  but  I can  not  forbear  to  point  out  to 
Senator  Owen  that  it  was  Justice  Harlan  who  handed  down 
the  Kansas  tax  decision  and  the  Arbitration  Act  decision  which 
the  Senator  denounces  in  the  same  indictment. 

SOME  MODERN  INSTANCES. 

While  Senator  Owen  is  searching  the  records  of  the  last  17 
years  to  discover  decisions  of  the  Supreme  Court  with  which  to 
find  fault,  it  is  well  to  cite  a few  of  its  decisions  which  have 
upheld  recent  legislation.  There  is  no  need  to  go  back  17  years. 
I shall  confine  myself  to  decisions  fresh  in  all  your  memories, 
decisions  handed  down  within  the  last  two  or  three  years.  For 
examples,  I call  your  attention  to  the  decisions  in  favor  of  the 
Oklahoma  Bank  Act,  the  Oregon  Initiative  and  Referendum  Pro- 
vision, the  North  Dakota  Coal  .Rate  Act,  the  United  States  Cor- 
poration Tax  Act,  the  United  States  Safety-Appliance  Act,  and 
the  United  States  Employers’  Liability  Act.  Moreover,  during 
the  last  few  years  there  have  been  numerous* decisions  in  cases 
arising  under  the  Interstate  Commerce  Act  and  the  Railroad 
Rate  Act  which  have  very  much  strengthened  the  hands  of  the 
Interstate  Commerce  Commission  in  exercising  its  control  over 
the  railroads. ' 

By  a number  of  recent  decisions  of  the  Supreme  Court  the 
right  of  corporations  to  withhold  their  private  books  and  papers 
from  inspection  by  the  authorities  has  been  practically  annulled. 

I by  no  means  deny  that  some  cases  have  occurred  in  which 
the  courts  in  some  of  our  States  have  failed  to  construe  con- 
stitutional provisions  in  the  light  of  present-day  conditions. 
Each  and  every  one  of  these  cases  has  been  violently  brought 
before  the  public,  while  the  numberless  cases  in  which  the  State 
courts  have  shown  themselves  fully  alive  to  the  expansion  of 
modern  thought  have  passed  quite  unnoticed. 

37725—10830 


10 


Throughout  this  discussion  it  is  well  to  remember  that  only 
that  small  percentage  of  laws  which  contain  provisions  of 
doubtful  meaning  or  of  doubtful  constitutionality  is  likely  to 
require  interpretation  by  our  Supreme  Courts,  State  or  National. 

A SELF-CONTAINED  REMEDY. 

After  all,  a decision  that  a wise  law  is  unconstitutional 
carries  its  own  remedy  with  it.  If  the  decision  is  correct, 
experience  has  shown  either  that  the  law  will  be  amended  or 
else  that  the  Constitution  will  be  altered  in  the  prescribed 
manner.  If,  on  the  other  hand,  the  decision  is  incorrect,  other 
courts  in  other  States  will  rule  differently  on  the  same  ques- 
tion. A new  law  will  be  passed,  substantially  the  same  as  the 
old  one,  and  this  time  it  will  be  found  constitutional. 

THE  RECALL  OF  JUDGES  WILL  BE  SLOW  TO  SHOW  RESULTS. 

I assume  that  we  shall  all  agree  that  the  Recall  of  Judges,  if 
it  should  be  adopted,  would  be  slow  to  show  evil  results,  even 
though  every  day  it  might  be  undermining  our  system  of  gov- 
ernment. If  the  State  were  to  dissolve  the  marriage  tie,  the 
results  would  by  no  means  show  at  once.  Most  of  us  would 
continue  to  live  with  our  wives  as  heretofore,  but  here  and 
there,  day  by  day,  family  life  would  be  undermined  by  hastily 
contracted  and  quickly  dissolved  alliances  until  at  last  the 
whole  rottenness  of  the  system  would  be  exposed.  For  50 
years  after  it  joined  the  Union,  the  State  of  Rhode  Island  lived 
under  a constitution  or  charter  which  practically  could  not  be 
amended.  It  was  a thoroughly  vicious  system,  as  all  men  can 
see  to-day,  yet  the  State  lived  under  it  for  half  a century  before 
it  resulted  in  the  armed  uprising  of  the  people  known  to  Amer- 
ican history  as  Dorr’s  rebellion. 

If,  as  I believe, .the  adoption  of  a provision  for  the  Recall  of 
Judges  should  put  fear  into  the  hearts  of  men  who  ought  to  be 
fearless,  it  by  no  means  follows  that  all  at  once  the  entire  bench 
would  become  cowards.  The  poison  would  be  slow  but  sure. 
It  might  be  many,  many  years  before  the  public  would  realize 
that  it  was  suffering  from  cowardly  judges,  that  industry  lan- 
guished, perhaps,  because  capital  had  become  timid,  and  that 
men’s  rights  were  but  doubtfully  assured.  Even  then  it  might 
be  many  more  years  before  the  people  would  surrender  the 
power  of  Recall.  Flatterers  of  the  voters  would  prove  to  them 
that  all  which  was  needed  was  a few  amendments,  larger  per- 
centages of  the  population  to  sign  the  Recall  petition,  and 
changes  of  that  sort.  If  the  people  once  decide  to  assume  the 
power  to  Recall  the  Judiciary,  even  if  it  prove  to  be  a great 
error,  yet  they  will  not  relinquish  that  power  until  the  havoc 
which  it  has  wrought  is  patent  to  every  eye. 

37725—10830 


li 


TIMID  JUDGES. 

The  people  believe  that  Congressmen  are  cowardly.  To  some 
extent  that  is  the  truth.  How  could  it  be  otherwise?  Can  a 
married  man,  middle-aged  or  advanced  in  years,  face  with  the 
dauntlessness  of  a hero  the  prospect  of  a return  to  private  life, 
followed  by  an  attempt  to  gather  together  the  remnants  of  a 
shattered  law  practice?  Unless  he  has  means  of  his  own,  such 
courage  is  hardly  to  be  expected.  Can  any  Congressman,  rich 
or  poor,  fail  to  quiver  at  the  thought  of  the  wound  to  his  pride 
and  self-esteem  wrhic*h  defeat  wrould  entail?  He  w’ho  could 
descend  the  ladder  of  power  without  pain  and  without  humilia- 
tion never  could  have  climbed  it  at  all. 

How  can  we  be  otherwise  than  cowardly?  If  against  our 
true  beliefs  wre  bow  to  the  wishes  of  our  electors,  then  they 
rightfully  despise  us.  If,  on  the  other  hand,  we  fail  to  yield, 
then  they  rightfully  defeat  us.  In  politics,  as  in  w7ar,  long  life 
and  courage  do  not  often  go  hand  in  hand.  If  it  wrere  other- 
wise, courage  would  not  be  courage  but  rather  policy. 

Many  of  you  have  been  judges.  Most  of  you  are  of  the  caliber 
of  wThich  judges  are  made.  Place  my  friend  here  at  my  left 
on  the  bench  with  a life  tenure  and  he  will  be  as  brave  and 
impartial  and  upright  as  a man  can  be.  Place  him  on  the  bench 
for  a long  term  of  years  and  he  will  be  a little  less  brave  and 
a little  less  impartial,  especially  as  election  time  or  the  time  for 
reappointment  draws  near.  Place  him  on  the  bench  for  a term 
of  five  years- and  he  will  be  timid  and  yielding.  Suspend  the 
Recall  over  his  head  and  he  will  ultimately  become  as  timid  as 
we  Congressmen.  The  old  traditions  of  the  bench  will  support 
his  independence  for  a while,  but  sooner  or  later  the  same 
causes  which  make  us  timid  will  produce  a like  effect  on  him. 

Let  us  concede  that  in  the  nature  of  things  Congressmen  must 
be  more  or  less  yielding  and  more  or  less  timid;  do  the  people 
wish  their  judges  reduced  to  this  same  level?  “ But,”  says  the 
academic  philosopher,  “ the  people  will  make  up  their  opinions 
according  to  a judge’s  full  record.  They  will  respect  a coura- 
geous judge  and  will  refuse  to  recall  him.” 

Experience  has  taught  all  practical  politicians  that  it  is  a 
great  error  to  suppose  that  men  will  habitually  vote  for  the 
candidates  whom  they  respect.  As  a rule,  men  will  vote  for  the 
candidates  who  will  give  them  what  they  want,  and  men  easily 
persuade  themselves  that  that  w^hich  they  wTant  ought  in  justice 
to  be  given  to  them.  Furthermore,  it  is  not  true  that  men  as  a 
wrhole  judge  candidates  by  their  entire  records.  Men  forget, 
new  voters  come  forward,  and  a candidate  is  only  too  likely  to 
be  judged  by  his  most  recent  action.  One  of  the  most  moving 
sights  I ever  saw  in  this  Hall  w7as  at  the  expiration  of  the  last 
37725—10830 


12 


Congress,  when  a venerable  Democratic  Member  arose  to  bid  us 
farewell.  He  liad  served  his  district  and  the  people  faithfully 
for  20  years,  as  we  well  knew.  He  had  never  been  attacked  by 
his  constituents  for  any  vote  he  ever  cast  except  one,  but  that 
one  vote  was  fatally  fresh  in  the  minds  of  the  people.  He  had 
voted  on  the  unpopular  side  on  a question  of  the  rules  of  the 
House,  and  it  was  feared  that  he  might  do  so  again.  No  po- 
litical change  had  taken  place  in  his  district;  but  his  former 
services  were  forgotten  and  he  was  defeated. 

COMMON  GROUND. 

I suppose  that  we  shall  all  agree  that  no  plan  for  the  selec- 
tion or  tenure  of  judges  can  be  perfect.  “ To  produce  good 
without  some  admixture  of  ill  is  the  prerogative  of  the  Deity 
alone.”  What  we  are  all  seeking  is  not  a perfect  system,  but 
the  best  method  by  which  we  may  obtain  and  retain  just  and 
impartial  judges. 

I suppose  that  we  shall  further  agree  that  if  the  recall  is 
once  established  as  the  law  of  the  land  it  will  not  be  possible 
to  restrain  its  use.  Those  who  believe  that  it  will  be  used  only 
as  a last  recourse  will  find  that  it  can  as  readily  be  used  as 
a first  resource. 

The  contention  that  public  business  should  be  conducted  on 
the  same  principles  as  private  business,  and  that  every  corpora- 
tion retains  the  right  to  recall  its  agents,  appears  to  me  hardly 
worth  an  answer.  In  the  first  place,  the  judge  is  not  an  agent, 
but,  rather,  a referee.  In  the  second  place,  public  business  can 
never  be  conducted  like  private  business  for  the  simple  reason 
that  it  is  not  private  business.  In  all  private  corporations  men 
vote  in  proportion  to  the  number  of  their  shares.  Does  anyone 
suppose  that  such  a system  could  be  applied  in  matters  of  gov- 
ernment? 

Stripping  the  discussion  of  the  Recall  of  Judges  by  the  peo- 
ple of  all  minor  issues  and  of  all  casuistry,  two  great  questions 
remain.  First,  ought  judges  to  be  more  accountable  to  the 
people  than  they  are  now?  Second,  if  greater  accountability 
is  desirable,  will  or  will  not  its  advantages  be  more  than  offset 
by  an  inferior  type  of  judge  on  our  benches? 

OUGHT  THE  MAJORITY  TO  RULE  WITHOUT  RESTRAINT? 

The  theory  that  the  majority  of  the  people  should  have  the 
right  to  recall  judges  who  render  decisions  not  to  their  liking, 
and  the  theory  that  the  people  should  have  the  right  to  recall 
or  overrule  the  decisions  themselves,  both  rest  on  the  assump- 
tion that  the  majority  should  have  the  right  to  govern  in  any 
way  that  it  sees  fit.  Here  is  the  fundamental  error.  The  ma- 
jority must  govern,  yet  it  must  not  govern  for  the  majority 
alone,  but  for  the  whole  people.  In  order  that  it  may  not  sac- 
37725-  10.330 


rifice  the  rights  of  the  minority,  their  rights  are  set  forth  and 
protected  in  the  Constitution. 

The  United  States  Constitution  prescribes  the  powers  which 
shall  vest  in  the  National  Government.  It  also  enumerates  cer- 
tain powers  which  neither  the  National  nor  the  State  Govern- 
ments are  to  possess.  For  instance,  the  Constitution  forbids 
either  the  National  or  the  State  Governments  to  pass  a law 
taking  away  any  man’s  right  to  be  tried  by  jury,  if  he  is  ac- 
cused of  crime. 

It  forbids  the  passage  of  a law  taking  away  one  man's  prop- 
erty and  giving  it  to  another  man  or  to  any  number  of  men. 

It  forbids  the  passage  of  a law  permitting  slavery. 

It  forbids  the  passage  of  a law  depriving  any  man  of  his  vote 
on  account  of  his  race. 

It  forbids  the  passage  of  a law  impairing  the  obligation  of  a 
contract.  For  example,  if  the  State  of  Massachusetts  were  to 
issue  4 per  cent  bonds  to  the  people,  then  the  State  is  forbidden 
to  pass  a subsequent  law  reducing  the  rate  of  interest  to  3 per 
cent  on  the  bends  already  sold. 

IS  MANKIND  JUST? 

Most  men  will  admit  that  all  those  provisions  in  the  Constitu- 
tion are  just  and  sound.  Many  of  you  perhaps  will  say  that  the 
majority  of  the  people  would  never  at  any  time  vote  to  set 
aside  any  judicial  decision  based  on  those  principles.  I am  by 
no  means  so  sure  of  that.  Let  us  see. 

Do  the  people  always  allow  jury  trials  to  men  accused  of 
crimes  which  arouse  violent  popular  indignation?  The  record 
of  lynchings  participated  in  by  entire  communities  would  seem 
to  show  the  contrary. 

Are  men  always  considerate  of  each  other’s  property  rights? 

If  the  question  were  put  to  the  whole  people  to-day  whether 
men  of  the  Slavonic  race,  for  instance,  should  have  the  right 
to  vote,  are  you  quite  sure  that  the  majority  would  not  vote 
“No”? 

If  I recollect  rightly,  I have  heard  of  States  trying  to  re- 
pudiate their  bonds.  Suppose  some  small  State  should  issue 
bonds  foi*  internal  improvements  at  4 per  cent  interest,  and  sup- 
pose that  those  bonds  were  taken  by  Wall  Street  capitalists. 
Suppose,  furthermore,  that,  times  were  to  become  hard  and 
that  this  State  needed  money  for  its  own  citizens,  are  you  per- 
fectly sure  that  a majority  of  the  people  of  that  State,  under 
the  guise  of  a special  tax  or  otherwise,  might  not  vote  to  re- 
duce that  interest  to  3 per  cent?  Even  the  fact  that  those  bonds 
had  been  sold  by  the  Wall  Street  capitalists  to  savings  banks 
might  not  save  them,  and  the  poor  depositors  in  the  savings 
banks  might  well  be  the  true  sufferers. 

37725—10830 


14 


Now,  if  a majority  will  do  any  or  all  of  those  things,  will  it 
not  also  overturn  any  decision  of  a court  which  tries  to  inter- 
fere, if  the  Recall  or  Review  of  Court  Decisions  is  permitted? 
Will  that  majority  tolerate  any  judge  who  stands  in  the  way  of 
its  will  if  it  has  the  right  to  recall  him?  Does  not  the  whole 
history  of  the  world  show  that  unrestrained  majorities  are 
tyrannical  and  unjust?  Ask  the  first  Irishman  you  see  whether 
he  thinks  the  English  majority  has  been  just  to  the  Irish 
minority. 

The  fact  is  that  in  its  very  nature  a constitution  is  a con- 
tract which  the  citizens  of  a country  make  with  each  other, 
promising  each  other  to  do  certain  things  and  not  to  do  certain 
other  things,  until  the  contract  or  constitution  shall  be  changed 
by  amendment.  And  right  here  appears  the  fallacy  of  the  argu- 
ment that  if  the  people  are  competent  to  adopt  a constitution 
they  must  be  competent  to  declare  what  they  meant  when  they 
adopted  it;  in  other  words,  they  must  be  capable  of  interpreting 
it.  This  means  that  a majority  of  the  people  is  the  proper  in- 
terpreter of  the  meaning  of  a contract  or  constitution  made 
especially  to  secure  the  rights  of  the  minority.  In  other  words 
a majority  which  has  made  a law  is  to  be  empowered  with  the 
right  to  decide  whether  or  not  the  provisions  of  its  own  law 
fall  within  the  limitations  previously  agreed  upon  by  the  Con- 
stitution. That  this  position  is  untenable  can  be  seen  by  reduc- 
ing an  illustration  to  a small  scale. 

A PACIFIC  ISLAND THE  CONSTITUTION  INTERPRETED  BY  VOTE  OF  THE 

PEOPLE. 

Suppose  five  men  live  on  an  island  in  the  Pacific,  and  sup- 
pose that  they  all  raise  cattle.  Inevitably  disputes  will  arise, 
and  some  sort  of  government  must  be  formed  to  prevent  blood- 
shed and  destruction.  They  agree  to  fence  off  their  lots  and  to 
keep  their  cattle  within  their  own  boundaries  and  not  to 
slaughter  or  appropriate  each  other's  animals.  That  agreement 
is  a constitution. 

The  strongest  man  and  the  weakest  man  alike  agree  to  it  and 
all  the  men  disarm.  There  comes  a heavy  storm  and  blows 
down  one  man’s  fences.  His  cattle  escape,  damage  his  neigh- 
bors’ crops,  and  pasture  on  their  lands.  Thereupon  his  neighbors 
each  slaughter  one  of  the  escaped  animals  for  his  own  use. 
The  owner  of  the  cattle  declares  that  his  neighbors  have  vio- 
lated the  constitution  by  slaughtering  his  cattle.  His  four 
neighbors  contend  that  he  himself  has  violated  the  constitution 
by  not  keeping  up  his  fences  and  that  they  have  suffered  damage 
thereby.  “ Moreover,”  they  say,  “we.  are  a majority  of  the  peo- 
ple and  we  decide  that  we  have  not  violated  the  constitution.” 
Whereupon  the  owner  of  the  cattle  would  probably  arm  himself 
37725—10830 


15 


once  more  and.  hire  one  of  tlie  people  to  fight  on  his  side.  How 
much  better  it  would  have  been  if  those  five  men  in  the  first 
place  had  chosen  the  wisest  man  as  judge  and  had  agreed  to 
regard  his  decisions  as  final.  Perhaps  you  think  that  the  ma- 
jority of  those  people  were  entitled  to  interpret  for  themselves 
the  constitution  which  they  had  adopted. 

HAVE  HUMAN  BEINGS  NO  ABSOLUTE  RIGHTS? 

A little  over  half  a century  ago  the  world  was  startled  by  a 
doctrine  which  found  great  currency  in  many  States  of  the 
Union.  The  dictum  went  forth  that  the  negro  had  no  rights 
which  the  white  man  was  bound  to  respect.  And  now  the  doc- 
trine is  gaining  ground  that  the  minority  of  the  people  have  no 
rights  which  the  majority  may  not  vote  to  overthrow  if  it  sees 
fit.  That,  in  plain  English,  is  the  doctrine  of  the  “ Review  of 
Judicial  Decisions  by  the  People.” 

The  doctrine  of  the  “ Recall  of  the  Judiciary  by  the  People” 
is  not  quite  so  extreme,  because  some  courageous  judges  will  be 
found  who  will  face  the  recall  and  face  a poverty-stricken  and 
humiliating  old  age  rather  than  render  a decision,  no  matter 
how  popular,  which  runs  counter  to  the  Constitution. 

Just  so  a number  of  Republican  Senators  were  found  who  had 
the  courage  to  break  away  from  the  Republican  Party  and  vote 
against  the  impeachment  of  Andrew  Johnson.  Nearly  every 
student  of  history  to-day  recognizes  that  those  Senators  were 
in  the  right,  yet  no  one  of  them  was  reelected  to  the  Senate, 
and  it  is' told  that  one  of  them  ended  his  life  as  a crossing 
sweeper. 

THE  BILL  OE  EIGHTS. 

There  is  no  case  arising  under  the  Constitution  to  which  there 
are  not  two  parties.  If  the  question  in  dispute  rests  on  the 
constitutionality  of  a law,  then  there  is  a majority  of  the  people 
on  one  side  and  a minority  of  the  people  on  the  other.  To  hold 
that  the  judge  is  the  agent  of  that  majority  is  to  make  of  him 
an  advocate,  not  a judge. 

The  Massachusetts  Bill  of  Rights,  adopted  in  1780,  declares : 

It  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free,  impartial, 
and  independent  as  the  lot  of  humanity  will  admit. 

But  can  a judge  with  the  recall  hanging  over  his  head  be  as 
free,  as  impartial,  and  as  independent  as  the  lot  of  humanity 
will  admit? 

Will  dependence  on  the  majority  lead  to  independence  of  the 
wishes  and  hopes  of  that  majority? 

Rufus  Choate  describes  the  duty  of  a judge  in  these  words : 

He  shall  know  nothing  about  the  parties,  everything  about  the  case. 
He  shall  do  everything  for  justice ; nothing  for  himself ; nothing  for  his 
friend  ; nothing  for  his  patron  ; nothing  for  his  sovereign.  If  on  one  side 
37725— 10830 


1G 


is  the  executive  power  and  the  legislature  and  the  people — the  sources 
of  his  honor,  the  givers  of  his  daily  bread. — and  on  the  other  an  indi- 
vidual nameless  and  odious,  his  eye  is  to  see  neither,  great  nor  small. 

Do  you  believe  that  judges,  with  the  sword  of  recall  hanging 
over  them,  could  possibly  avoid  being  conscious  of  the  probable 
political  consequences  to  themselves  arising  out  of  unpopular 
decisions  or  out  of  decisions  against  powerful  interests  or 
against  powerful  counsel? 

WHAT  SORT  OF  JUDGES  SHOULD  WE  GET  UNDER  THE  RECALL  SYSTEM? 

In  a certain  city  in  Massachusetts  it  used  to  be  said  that  no 
mayor  could  ever  last  long.  If  he  enforced  the  liquor  laws,  he 
was  defeated,  and  if  he  refrained  from  enforcing  them,  he  met 
the  same  fate.  Do  you  care  to  put  your  judges  in  that  position? 
What  sort  of  men  do  you  think  would  consent  to  become  judges 
under  such  conditions? 

Let  any  lawyer  of  standing  ask  himself  whether  he  would 
accept  the  position  of  judge  under  a recall  system.  Most  of 
you  will  say  “no.”  Failures  at  the  bar  might  clutch  at  the 
straw.  Ambitious  young  lawyers  might  be  candidates  under 
this  uncertain  tenure.  Probably  most  of  these  ambitious  young 
lawyers  would  accept  the  office  as  an  advertisement  and  a help 
toward  building  up  the  private  practice  to  which  they  intend 
to  return.  How  many  successful  men  deeply  learned  in  the 
laws  would  care  to  put  aside  their  practice  for  the  uncertain 
tenure  of  a judgeship? 

The  salary  of  a judge  is  small  compared  to  that  which  the 
majority  of  our  Federal  judges  could  earn  in  private  practice. 
Yet  they  have  accepted  the  smaller  salary  because  the  appoint- 
ment assures  their  future  for  life,  modestly  but  very  honorably. 

Once  establish  the  Recall  and  every  able  man  before  becoming 
a judge  will  carefully  weigh  the  situation  which  will  confront 
him.  He  will  not  fail  to  realize  that  he  may  be  called  upon  to 
decide  questions  which  involve  the  press,  which  involve  elec- 
tions, which  involve  religious  questions,  which  involve  powerful 
corporations,  which  involve  employers  and  employed,  which  in- 
volve liquor  laws,  which  involve  cases  for  damages  where  the  com- 
munity is  the  defendant  and  some  unpopular  citizen  the  plaintiff. 

No  judge  can  escape  such  embarrassing  cases,  and  no  human 
being  can  deny  that  often  a judge  would  be  in  danger  of  re- 
call, no  matter  which  way  he  should  decide  the  cases  brought 
before  him.  Will  such  a prospect  as  that  attract  the  kind 
of  man  whom  the  people  desire  as  judge?  Says  the  casuist, 
“ Do  you  mean  to  say  that  an  honest  and  upright  man  will 
hesitate  to  accept  a judicial  office  merely  because  he  may 
some  time  be  called  on  to  face  a fair  trial  by  the  citizens?  Can 
he  not  trust  the  people  to  acquit  him  if  he  has  done  no 
37725—10830 


IT 


wrong?”  I mean  to  say  exactly  that.  Every  man  within  the 
sound  of  my  voice  often  does  things  which  he  feels  to  be  right, 
knowing  full  well  all*  the  time  that  he  might  have  the  greatest 
difficulty  in  persuading  a censorious  world  of  the  purity  of 
his  motives. 

A “ FAIR  TRIAL  BY  THE  CITIZENS.” 

But  would  the  Recall  be  a “fair  trial  by  the  citizens”?  By 
no  means.  It  would  be  a trial  in  which  the  accused  must  face 
not  only  his  judges  but  at  the  same  time  another  candidate 
for  his  position.  Perhaps  this  other  candidate  might  be  more 
popular.  Perhaps  while  the  judge  was  secluded  in  his  office 
the  other  candidate  might  have  been  continually  building  up 
his  political  strength  with  the  new  voters.  A fair  trial  im- 
plies that  the  defendant  may  summon  witnesses  and  cross- 
examine  them.  A fair  trial  implies  that  the  defendant's  side 
shall  be  heard  by  jurymen  who  shall  listen  attentively  to  the 
whole  case.  Under  the  Recall  the  accused  has  no  such 
rights.  He  can  not  bring  before  the  public  the  newspapers  or 
magazines  which  have  been  breathing  insinuations  against  him. 
He  can  not  cross-examine  his  accusers.  He  can  not  compel 
voters  to  listen  to  his  side  of  the  case.  He  can  not  compel  the 
newspapers  to  be  just  in  their  treatment  of  the  evidence.  No 
one  can  picture  the  situation  of  such  a judge  better  than  it  was 
pictured  on  the  floor  of  this  House  last  May : 

The  recall  is  a political  indictment  found  without  evidence,  charg- 
ing no  offense,  moral  or  legal,  presented  to  the  entire  community  as  a 
court.  The  defendant  is  stripped  of  all  presumptions.  He  can  not 
answer  the  charge,  because  no  charge  is  necessary  to  convict  him. 

The  answer  is  made  that  the  recall  simply  affords  the  judge  an  oppor- 
tunity to  go  before  the  people  at  another  election. 

Yes;  but  how  does  he  go?  Docs  he  go  as  a clean-hearted,  clear- 
headed candidate,  resting  his  claims  upon  his  ability  as  a judge  or  his 
honor  as  a man?  Does  he  go  with  pride  gathered  as  the  fruits  of  a 
useful  life?  Does  he  go  as  the  embodiment  of  courage  and  patriotism? 
No ; he  goes  with  character  dismantled  by  the  attacks  of  those  who 
would  destroy  him.  lie  goes  with  his  oath  of  office  broken  by  the 
furtive  whisperings  of  those  who  hold  a grudge.  lie  goes  with  his 
honor  stained  by  the  vulgar  hands  of  the  reckless  accuser.  He  goes 
leaving  his  family  at  home  in  the  shadow  of  disgrace.  He  goes  im- 
pugned, impeached,  outraged,  and  dishonored,  not  so  much  to  regain 
the  worthless  office,  but  to  restore  his  shattered  fame  and  recover  his 
foreclosed  honor. 

How  will  it  finally  affect  the  character  of  our  judiciary?  What 
ultimate  contribution  will  it  make  to  the  stability  of  good  government? 

Would  tlie  possibility  of  a trial  of  this  kind  attract  to  the 
bench  the  kind  of  men  whom  we  need? 

THREE  WORLD-WIDE  MOVEMENTS. 

In  the  last  150  years  there  have  been  three  separate  epochs 
when  world-wide  discontent  and  world-wide  change  have  simul- 
taneously manifested  themselves. 

37725- -10830 2 


18 


In  the  first  of  these  epochs  occurred  the  uprising  of  Poland 
under  Ivosciuszko,  the  American  Revolution,  the  French  Revo- 
lution, and  an  entire  change  in  the  map  of  Europe. 

The  second  of  these  epochs  was  marked  by  the  revolution  of 
1848  in  France,  the  uprisings  of  Garibaldi  in  Italy,  of  Kossuth 
in  Austria-Hungary,  the  overthrow  of  the  Sonderbund  in  Switz- 
erland, and  the  Chartist  upheaval  in  England.  During  this 
second  epoch  we  Americans  were  engaged  in  a war  with  Mexico, 
which  for  a short  space  of  time  distracted  the  minds  of  the 
people.  The  spirit  of  discontent,  however,  manifested  itself 
here,  not  only  by  the  rapid  growth  of  the  movement  against 
slavery,  but  by  various  other  movements  of  a popular  nature. 
For  example,  in  a single  decade  seven  States  of  the  Union 
adopted  the  system  of  electing  their  judges,  a policy  previously 
unknown  in  this  country. 

The  present  epoch  of  change  and  discontent  began  with  funda- 
mental reforms  in  New  Zealand.  During  the  last  10  years 
Australia,  Great  Britain,  Germany,  and  France  have  been 
struggling  with  the  new  problems.  Revolutions  and  changes  in 
forms  of  government  have  occurred  in  the  last  decade  in 
Russia,  Persia,  Turkey,  Portugal,  and  China. 

It  was  during  the  first  epoch  of  world-wade  change  that  our 
National  Constitution  was  adopted.  Singularly  enough,  both 
parties  to  the  discussion  of  the  question  of  the  Recall  of  Judges 
by  the  people  quote  the  sayings  of  the  fathers  who  built  that 
Constitution.  Jefferson  was  our  minister  to  France  during  the 
framing  of  the  Constitution,  so  he  had  no  part  in  the  work. 
Nevertheless,  both  sides  quote  him  to  prove  their  respective 
contentions. 

I am  by  no  means  one  who  thinks  that  all  wisdom  died  with 
the  fathers;  neither  am  I one  who  believes  that  their  wisdom 
can  be  lightly  disregarded. 

A son  standing  on  his  father's  shoulders  can  see  a greater 
distance  than  his  sire,  but  the  range  of  his  vision  is  destroyed 
should  he  attempt  to  rely  on  his  own  stature  alone.  Wisdom  is 
cumulative.  Each  age  adds  its  wisdom  and  experience  to  the 
wisdom  and  experience  of  the  ages  that  have  gone  before.  How 
foolish,  therefore,  would  our  own  age  show  itself  to  be  were  we 
to  refuse  consideration  to  the  wisdom  and  experience  of  the 
fathers  of  the  Constitution. 

In  the  Constitutional  Convention  of  1787  a proviso  was  offered 
to  make  the  Federal  judges  removable  by  the  President  on  the 
application  of  the  Senate  and  the  House.  But  one  State  voted 
in  favor  of  this  proviso;  so  that  to-day  our  Federal  judges  are 
appointed  by  the  President  for  life  and  can  only  be  removed  by 
finding  them  guilty  on  impeachment.  You  may  quote  Jefferson 
37725— 10S30 


19 


as  you  choose.  “The  devil  can  quote  scripture  for  his  pur- 
pose.” 

The  fact  remains  that  even  this  modified  method  of  removal 
by  Congress  was  sustained  in  the  Constitutional  Convention  by 
the  vote  of  only  one  State.  To  be  sure  Senator  Owen  ex- 
plains all  this  by  telling  us  that  the  fathers  who  wrote  the  Con- 
stitution were  reactionaries.  The  world  has  always  thought 
otherwise. 

The  German  historian,  Yon  Holst,  in  his  History  of  the  Con- 
stitution of  the  United  States,  gives  a most  interesting  account 
of  the  movement  toward  a pure  democracy  in  the  second  epoch 
of  discontent  and  change  which  I have  specified.  Speaking  of 
this  country  in  the  middle  of  the  last  century,  he  says — I quote 
from  the  translation: 

How  strong  this  tendency  to  the  radicalization  of  democracy  was 
can  best  he  seen  by  the  many  efforts,  more  or  less  successful,  made  in 
many  States  to  apply  even  to  the  judicial  office  the  principles  of  pure 
democracy. 

He  then  quotes  many  of  the  arguments  and  speeches  made  for 
and  against  bringing  the  courts  under  popular  control.  The 
reasons  urged  on  both  sides  are  precisely  the  same  arguments 
which  are  being  formulated  to-day.  Even  the  terminology  used 
is  exactly  the  same.  The  so-called  “ Progressive  Democracy  ” of 
Mississippi  undertook  to  interrogate  all  candidates  for  judge- 
ships  as  to  what  their  decisions  would  be  on  the  question  of  the 
right  of  that  State  to  repudiate  its  debts. 

Yon  Holst  says: 

With  the  utmost  shamelessness  it  was  declared  to  be  a public  right 
to  pledge  judicial  candidates  before  their  election  to  decide  questions 
which  might  be  brought  before  their  court  in  a certain  way,  because, 
according  to  the  genuine  democratic  principle,  public  opinion  ought  to 
be  the  law  of  the  land. 

The  great  German  historian  then  points  out  that  the  Supreme 
Court  had  by  no  means  stood  still,  as  alleged,  nor  had  it  been  a 
rock  against  which  the  waves  of  public  opinion  had  broken  in  vain. 

Said  Von  Holst : 

The  truer  comparison  would  be  with  a glacier,  stiff  and  firm  and  yet 
moving  forward,  and,  as  it  slides  down,  always  adapting  itself  to  the 
bed  on  which  it  lies.  Slowly  and  quietly  the  Supreme  Court  had 
changed  with  the  times. 

Slowly,  quietly,  and  surely  will  the  Supreme  Court  always 
change  with  the  times  if  its  independence  is  respected.  But 
should  its  independence  be  wrested  from  it,  rashly  and  rapidly 
will  it  leap  from  innovation  to  innovation,  hurriedly  will  it  seek 
to  reflect  each  irresponsible  impulse  of  the  hour,  until  the  time 
will  come  when  the  world  shall  say  that  the  greatest  tribunal 
ever  devised  by  the  mind  of  mortal  has  become  a victim  to  the 
folly  of  mankind. 

37725—10830 


20 


SOME  MASSACHUSETTS  HISTORY. 

While  other  States  were  being  swept  by  the  fire  of  pure 
democracy  Massachusetts  by  no  means . escaped,  A constitu- 
tional convention  was  called  in  Boston  in  1853*  Although  the 
amendment  providing  that  Massachusetts  judges  should  he 
elected  was  voted  down,  nevertheless  a proviso  limiting  their 
tenure  to  10  years  was  carried.  Fortunately,  however,  the  peo- 
ple rejected  the  new  constitution,  and  to-day  Massachusetts 
judges,  from  the  highest  to  the  lowest,  are  still  appointed  for 
life  by  the  governor  of  the  Commonwealth.  Massachusetts 
judges  from  the  highest  to  the  lowest  can  only  be  removed  by 
impeachment  or  on  address  by  the  senate  and  house,  if  the  gov- 
ernor and  council  give  consent. 

Have  the  events  proved  Massachusetts  right  or  wrong  in  ad- 
hering to  the  practice  of  the  fathers?  If  our  system  is  wrong 
the  fact  must  have  appeared  ere  now.  Men  can  not  for  over  a 
century  gather  grapes  from  thorns  nor  figs  from  thistles.  Ques- 
tion the  next  lawyer  you  see  as  to  which  State  bench  stands 
highest  and  hands  down  the  best  decisions.  He  will  tell  you 
that  the  Massachusetts  bench  stands  first  of  all. 

Do  you  ever  hear  whispers  that  Massachusetts  judges  have 
unholy  alliances  with  politicians  or  with  corporations?  No; 
because  those  judges  are  appointed  for  life  and  fear  no  man. 

Ask  yourselves  whether  such  whispers  have  been  unheard  in 
the  States  where  judges  are  elected  for  short  terms  in  the 
interest  of  pure  democracy.  The  movement  for  the  Recall  of 
Judges  in  those  States  answers  the  question. 

No  Republican  platform  and  no  Democratic  platform  in  Massa- 
chusetts has  ever  demanded  the  Recall  of  Judges. 

No  Republican  platform  and  no  Democratic  platform  in  Mas- 
sachusetts has  even  demanded  an  elective  judiciary.  Could  this, 
by  any  possibility,  be  the  record  if  our  system  had  proved  a fail- 
ure? In  the  past  year  it  has  fallen  to  the  lot  of  our  Democratic 
governor,  Mr.  Foss,  to  make  many  appointments  to  the  Massa- 
chusetts bench.  His  selections  have  commended  themselves  to 
everyone.  I read  in  a newspaper  a little  while  ago  of  an  inter- 
view between  the  governor  and  a certain  Republican,  who  had 
called  to  congratulate  him  on  his  appointments  of  judges.  In 
the  course  of  the  interview  Gov.  Foss  explained  that  he  had 
experienced  great  difficulty  in  getting  the  best  men  to  serve. 
Do  you  think  that  his  task  would  have  been  lighter  if  these  men 
had  been  obliged  to  face  the  torture  of  a political  canvass  and 
an  uncertain  tenure? 

Can  it  be  that  the  people  of  Massachusetts  are  so  different 
from  the  people  in  other  States,  or  is  it  the  fact,  perchance,  that 
37725—10830 


21 


our  system  is  the  true  system?  For  myself,  I feel  that  the 
movement  to  control  the  judiciary,  begun  in  the  middle  of  the 
last  century  under  the  guise  of  progress,  has  proved  a step 
backward  instead  of  a step  ahead. 

THE  RECALL  OF  JUDGES  BY  ADDRESS  OF  TIIE  LEGISLATURE. 

Of  late  the  Massachusetts  constitutional  provision  for  the  re- 
moval of  our  life  judges  by  address  of  the  legislature  has  been 
quoted  as  a precedent  for  the  Recall  of  Judges  by  the  People. 
Yet  no  one,  so  far  as  I can  find,  has  made  a study  of  the  question 
to  see  whether  in  Massachusetts  this  provision  has  worked  well  or 
worked  badly  or  has  simply  been  a useless  vermiform  appendix 
of  our'  system.  Habitually  this  Massachusetts  constitutional 
provision  has  been  misstated.  Few  people  seem  to  be  aware 
that  it  requires  the  consent  of  the  governor,  the  consent  of  his 
council  elected  by  the  people,  and  the  consent  of  both  branches 
of  the  Massachusetts  Legislature  before  a judge  can  be  removed 
by  address.  This  method  of  relieving  the  Massachusetts  bench 
of  undesirable  judges  has  been  resorted  to  but  twice  within  the 
last  100  years  and  only  five  times  in  the  history  of  the  State. 

In  1803  three  judges  were  removed — two  of.  them  on  convic- 
tion before  the  Supreme  Court  of  extortion  and  the  third  on 
account  of  paralysis.  Tlie  two  extortionate  judges  could  clearly 
and  properly  have  been  removed  by  impeachment,  and  prob- 
ably the  paralytic  could  have  been  removed  by  the  same  process 
if  the  legislature  had  so  desired.  Certainly  that  paralytic  must 
have  been  neglectful  of  tlie  duties  of  his  office.  Be  that  as  it 
may,  in  one  way  or  another,  physically  or  mentally  disabled 
judges  have  always  been  separated  from  the  bench.  I know  of 
no  one  who  maintains  the  contrary,  so  I doubt  whether  any  new 
method  of  separation  is  required  in  such  cases.  To  remove  by 
process  of  impeachment  a paralytic  judge  who  refused  to  re- 
sign might  perhaps  seem  severe,  but  it  could  be  done.  In  the 
last  analysis  the  Senate  and  the  House  are  the  sole  judges  as 
to  what  constitutes  an  impeachable  offense. 

The  two  cases  of  removal  by  address  occurring  in  Massachu- 
setts during  the  last  100  years  are  those  of  Judge  Day  and 
Judge  Loring,  both  of  them  probate  judges.  Judge  Day  was 
removed  on  address  for  misconduct  and  maladministration  in 
office.  Clearly  he  could  have  been  removed  as  well  by  impeach- 
ment. 

The  most  notorious  case,  however,  is  that  of  the  removal  of 
Judge  Loring  purely  for  political  reasons.  A full  account  of 
it  can  be  found  in  the  Diary  of  Richard  H.  Dana,  one  of  the 
founders  of  the  Free  Soil  Party. 

Judge  Loring  held  simultaneously  the  office  of  Massachusetts 
judge  of  probate  and  the  office  of  United  States  commissioner. 

37725—10830 


22 


In  1854,  when  the  abolition  movement  in  Massachusetts  was 
nearing  its  climax,  Anthony  Burns,  a fugitive  slave,  was  cap- 
tured in  Boston  by  the  United  States  authorities.  He  was 
brought  before  Judge  Boring,  acting  in  his  capacity  as  United 
States  commissioner.  Mobs  gathered  in  the  street,  endeavoring 
to  free  Burns.  Bloodshed  took  place,  and  the  trial  was  con- 
ducted in  a court  room  surrounded  by  United  States  artillery- 
men and  marines.  Dana  became  volunteer  counsel  for  the  fugi- 
tive slave.  In  his  diary  he  tells  ns  that  Judge  Loring  treated 
the  case  with  fairness.  As  the  record  was  complete  and  the 
question  of  identity  established,  there  was  nothing  for  the  judge 
to  do  except  to  surrender  the  slave  to  his  master.  When  the 
legislature  met  an  address  was  brought  forward  calling  for  the 
removal  of  Judge  Loring  from  his  position  as  judge  of  probate 
in  Massachusetts.  No  contention  was  made  that  he  was  not  a 
good  judge  of  probate.  Nothing  was  alleged  against  him,  except 
that  when  acting  as  United  States  commissioner — an  absolutely 
different  office — he  had  performed  an  unpopular  duty.  Pas- 
sions were  aroused,  feeling  wras  at  fever  heat,  and  at  first  no 
one  was  found  courageous  enough  to  point  out  the  impropriety 
of  the  proposed  address.  Dana’s  diary  tells  us  how  he  asked  his 
fellow  abolitionists  to  help  to  stem  the 'tide.  It  tells  us  how  he 
went  to  Quincy  and  to  Dexter,  and  how  they  agreed  with  him 
but  would  not  help  him.  Finally,  Dana  took  his  popularity  in 
his  hands,  went  alone  before  the  legislature,  and  opposed  the 
address.  Nevertheless  it  was  adopted  in  the  session  of  1855. 
Henry  J.  Gardner,  the  Knownothing  governor  of  Massachusetts, 
resting  on  his  constitutional  rights,  refused  to  remove  Judge 
Loring.  The  State  went  Knownothing  again  in  the  autumn  elec- 
tions, and  Gov.  Gardner  was  reelected  and  reelected  once  more 
the  next  year.  An  address  against  Judge  Loring  was  again 
adopted  in  1857  and  again  discountenanced  by  the  governor.  It 
was  not  until  185S  that  Judge  Loring  was  finally  removed  by 
Gov.  Nathaniel  P.  Banks. 

Such  is  the  history  of  the  most  famous  instance  of  removal 
on  address  by  the  Legislature  of  Massachusetts. 

TTIE  EXPERIENCE  OF  THE  STATE  OF  MAINE. 

Now,  let  us  turn  to  the  State  of  Maine,  where  the  provision 
for  removal  of  judges  by  the  legislature  is  nearly  the  same  as 
in  Massachusetts.  Throughout  the  history  of  the  State  of  Maine 
only  one  judge  was  ever  removed  on  the  address  of  the  legis- 
lature. Judge  Davis  was  removed  from  the  bench  of  that  State 
entirely  for  political  reasons.  I condense  a history  of  the  case 
taken  from  the  Monthly  Law  Reporter. 

In  January,  1856,  owing  to  a question  arising  under  the  new 
constitution  of  the  State  of  Maine,  two  individuals,  Mr.  Baker 
37725—10830 


23 


and  Mr.  Emery,  simultaneously  claimed  to  be  sheriff  of  Cum- 
berland County.  Mr.  Baker  at  the  time  held  office  as  sheriff 
under  an  old  commission  which  by  its  terms  had  not  yet  expired. 
Mr.  Emery  had  been  appointed  by  the  governor  to  supersede 
him.  Mr.  Baker  claimed  that  the  governor  had  exceeded  his 
powers,  inasmuch  as  by  the  terms  of  the  new  constitution,  re- 
cently adopted  by  the  people  of  Maine,  sheriffs  must  be  elected 
and  not  appointed.  Mr.  Emery  maintained  that  the  time  for 
election  had  not  arrived,  and  that  meanwhile  all  officers  re- 
mained as  before  under  the  power  of  the  executive. 

Judge  Davis  recognized  Mr.  Baker,  the  incumbent  of  the 
office,  as  the  legal  sheriff.  For  this  act  he  was  removed  by  the 
legislature  nearly  or  quite  on  a party  vote.  The  office  so  left 
vacant  was  not  filled.  The  next  year  the  political  complexion 
of  the  Maine  Legislature  had  been  changed  by  the  autumn  elec- 
tions and  a new  governor  had  been  chosen.  Thereupon  Judge 
Davis  was  reappointed  to  his  position. 

CONCLUSION. 

It  is  idle  for  anyone  to  assert  or  for  anyone  to  deny  that 
Abraham  Lincoln  would  have  been  removed  under  a recall  sys- 
tem in  1861  or  1862.  Neither  contention  can  be  proved.  It  is 
well  to  remember,  however,  that  a large  majority  of  the  people 
in  1S60  voted  for  other  candidates  for  the  Presidency.  Lincoln 
was  the  choice  of  a minority  only,  and  we  must  not  forget  that 
men  elected  merely  by  a plurality  of  votes  are  peculiarly  likely 
to  be  recalled  as  soon  as  anything  goes  wrong. 

The  northern  forces  w^ere  defeated  repeatedly  in  1861,  1862, 
and  the  spring  of  1863.  Men  shook  their  heads  and  mistrusted 
the  ability  of  the  President.  Under  a recall  system,  can  you 
doubt  that  a movement  for  the  recall  of  Lincoln  would  have 
been  inaugurated?  That  the  movement  would  have  been  suc- 
cessful no  one  can  say,  although  that  is  my  opinion;  but  does 
anyone  doubt  that  it  would  have  been  inaugurated?  Could 
anything  have  been  w-orsc?  than  to  plunge  the  country  into  an- 
other presidential  campaign  in  1861  or  1862?  Yet  a minority 
can  always  force  an  election  under  the  recall  system,  irrespec- 
tive of  what  the  wishes  of  the  majority  may  be. 

The  recall  advocates  tell  us  that  the  device  would  seldom  be 
used  against  judges.  I am  inclined  to  concede  some  force  to 
that  view.  I should  expect  to  see  it  used  more  often  in  the 
earlier  years  of  its  adoption,  because  throughout  the  Union 
to-day  the  bench  is  honored  by  many  a judge  who  will  coura- 
geously stand  for  the  truth,  unpopular  as  it  may  temporarily  be. 

Gradually  the  bench  will  change.  Judges  wall  be  intimidated 
by  the  fate  of  their  courageous  associates.  Men  will  not  seek 
37725--10830 


24 


the  bench  as  a career  unless  they  are  willing  and  ready  to  make 
their  decisions  conform,  not  to  the  law  and  to  the  Constitution, 
but  to  the  wishes  of  each  temporary  majority.  The  recall  will 
seldom  be  invoked  against  a bench  of  timeservers. 

The  enemies  of  the  judiciary  tell  us  that  judges  are  frail, 
weak,  erring  men,  like  ourselves,  and  that  their  opinions  are  no 
better  than  our  own.  I grant  you  that  judges,  like  all  men,  are 
by  nature  subject  to  frailty,  weakness,  and  error.  Is  that  a 
good  reason  for  the  adoption  of  a system  which  will  magnify 
those  defects?  Should  it  not  rather  be  the  aim  of  our  system 
to  strengthen,  to  intrench,  and  to  guard  the  judge  against  those 
infirmities  which  are  the  inheritances  of  every  son  of  Adam? 

No  influence  in  office  is  so  purifying  as  fixity  of  tenure.  If 
anyone  doubts  that  fact,  let  him  take  counsel  with  those  admin- 
istrators of  our  Government  whose  memory  goes  back  beyond 
the  time  when  our  reformed  civil-service  system  became  a living 
reality.  Subject  a man  in  office  to  the  necessity  of  watching 
the  political  barometer  and  you  will  find  that  one  eye,  if  not 
both,  will  be  watching  the  storm  signals  instead  of  the  public 
service.  Secure  that  same  man  in  his  position,  provide  for  his 
support,  and  he  will  glance  neither  to  the  right  nor  to  the  left 
from  the  line  of  his  duty. 

In  conclusion,  I can  not  resist  the  temptation  to  borrow  an 
illustration  from  Justice  Wendell  Phillips  Stafford,  of  the  Su- 
preme Court  of  the  District  of  Columbia.  In  ancient  Rome  the 
tribunes  of  the  people  were  charged  with  the  duty  of  annulling 
laws  which  struck  at  fundamental  rights.  Demagogues  and 
designing  men,  whose  purposes  had  been  thwarted,  advised  the 
Romans  to  do  away  with  the  tribunes.  History  tells  us  that  the 
people  were  brought  to  a wise  determination  of  the  question  by 
the  relation  of  a fable.  “ Once  upon  a time,”  said  the  tribunes, 
“ the  wolves  advised  the  sheep  to  get  rid  of  their  watchdogs  be- 
cause they  interfered  with  the  sheep  going  where  they  pleased 
and  were  really  the  only  obstacle  to  a perfect  understanding 
between  the  forest  and  fold.”  When,  afterwards,  the  Roman 
people  forgot  this  fable  and  gave  up  their  tribunes,  they  lost 
their  liberty,  and  they  never  regained  it  till  they  got  their 
tribunes  back. 

The  watchdog  may  anger  the  sheep  and  may  restrain  the 
sheep  against  their  impulses,  but  he  is  their  security  and  the 
protector  of  each  one  of  them.  Let  the  flock  think  twice  before 
it  exchanges  the  watchdog  for  the  wolf. 

37725—10830 

o 


